The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court strikes again — this time at tribal sovereignty

Sasafane stands with a protest sign in Tulsa in response to the Supreme Court's ruling June 29 that Oklahoma can prosecute non-Native Americans for crimes committed on tribal land when the victim is Native American. (Manuela Soldi/Tulsa World via AP)
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Gregory Ablavsky is a professor of law and Elizabeth Hidalgo Reese is an assistant professor of law at Stanford Law School.

Amid many momentous decisions from the Supreme Court in the final week of its term, the importance of Oklahoma v. Castro-Huerta — a jurisdictional fight involving Indian reservations — may go overlooked. But its effects will reach far beyond Oklahoma and its land disputes.

The 5-to-4 decision blunts the effects of the court’s 2020 ruling in McGirt v. Oklahoma, which reinforced that much of Oklahoma was, legally, Indian country, where many crimes were beyond the reach of the state and its laws. With its new, sweeping ruling, the court reinstates a piece of Oklahoma’s pre-McGirt power over this territory by upending the law on reservations throughout the country.

The court held Wednesday that all states have, as a matter of state sovereignty, the power to prosecute non-Indian crimes within Native lands. And in a bold claim that departs from centuries of federal Indian law precedent, Justice Brett M. Kavanaugh wrote for the majority, “Indian country is part of the State, not separate from the State.”

To put it bluntly, this decision is an act of conquest. And it could signal a sea change in federal Indian law, ushering in a new era governed by selective ignorance of history and deference to state power.

The majority opinion describes the question of state jurisdiction over crimes as having “newfound significance” after McGirt and insists that the “exercise of state jurisdiction here would not infringe on tribal self-government.”

Nothing could be further from the truth.

This is hardly the first struggle over state power in Indian country. Native peoples have long fought desperately to prevent state interference on tribal lands.

In McGirt, Justice Neil M. Gorsuch’s opinion eloquently begins, “On the far end of the Trail of Tears was a promise.” To understand Castro-Huerta, we must look to why the Trail of Tears happened in the first place.

In the 1830s, Southern states including Georgia wanted Indian land. They aggressively claimed jurisdiction over Native territory within their borders so they could stamp out tribal communities. Seeking to expel non-Indian missionaries aiding the Cherokee, Georgia made it a crime for any non-Indian to be on Cherokee land without the state’s permission.

The Cherokee Nation challenged Georgia’s law and took its case to the Supreme Court. In Worcester v. Georgia, Chief Justice John Marshall ruled in 1832 that the Constitution granted the federal government exclusive power to manage relations with Native nations. The criminal laws of Georgia, he held, “have no force” on Cherokee land because the Cherokee Nation remained a “nation” — “a distinct community, occupying its own territory” that, despite being part of the United States, did “not thereby cease to be sovereign and independent.”

Georgia ignored the court, sold Cherokee lands and sent in its militia. In despair, some Cherokees signed a treaty agreeing to be removed to present-day Oklahoma, with a promise that their new lands would remain free from state control. Others refused, only to be forced at bayonet point.

Despite its brutal aftermath, and subsequent erosions at the margins, Worcester’s hard-won holding — that Native nations remain independent of the states — has remained good law, until now.

The Castro-Huerta court picked up where Georgia left off, claiming that “the Worcester-era understanding of Indian country as separate from the State was abandoned” later in the 1800s.

As scholars who have dedicated our lives to studying this area of law, we are baffled. When and how did this supposed abandonment happen? The majority relies not on Founding-era understandings or canonical federal Indian law cases, but on cherry-picked ancillary cases and late-19th-century arguments with subsequently overruled foundations.

This is not how originalism is supposed to work. Originalism would look to the Founding-era history that supported Worcester. As Gorsuch traces in his Castro-Huerta dissent, this context underscores the importance of tribal independence from state law in ensuring peace in the early days of the republic. “Truly,” Gorsuch wrote, “a more ahistorical and mistaken statement of Indian law would be hard to fathom.”

Now, as in the 1830s, jurisdiction is about power. Then, states sought to control Indian country not to protect Native people but to erode tribal sovereignty. Perhaps today, states will choose not to use their newly conferred power to usurp tribal authority over their lands. But there is good reason to doubt this.

For example, last week there were scenarios in which tribes or the federal government could protect access to reproductive care on tribal lands. Now, following the Supreme Court’s overturning of Roe v. Wade, there is nothing to stop a surrounding state from entering tribal lands and prosecuting non-Indian doctors or women — no matter what the tribe has to say about it.

We hope that much of this unnecessarily broad opinion will be interpreted narrowly and carefully by future courts. But Castro-Huerta is more than a jurisdictional dispute. It is, like the other cases decided in the final week of the court’s term, a radical remaking of current law that casts aside foundational precedent — and could have profound consequences for Native nations and their authority.

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